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THE DECISION 



OF 

THE KING OF THE NETHERLANDS 

CONSIDERED IN KEFERENCK TO THE RIGHTS OK 

THE UNITED STATES, 

AND OF 

THE STATE OF MAINE. 



PORTLAND : 

PRINTED BY THOiMAS TODD. 

1831. 



E31? 



The author of ihe following numbers w.ns led lo prepare Ihem and to present ihem 
In their present form by the repeated suggestion of several of his fellow citizens, who 
lake a deep interest in the subject to which they relate. If the question were one 
of trilling importance and temporary character, — if the stage, to which the proceed- 
ings have nrrive<l, and the course proposed to be pursued in regard to them did not 
invoJM' doctrines extending to the fundamental principles of our political federative 
sj'stem of government, he certainly would not have intruded himself at this moment 
upon the notice of the public. But Maine protests against being condemned un- 
heard. She solicits, she demands as an act of justice of her sister Slates, of the 
United States, of the high-minded Representatives of the States and of the People 
of Uie United Stales, the Senators and Members of Congress, a patient and thorough 
investigation before pronouncing a decision. She asks of them not to search for 
plausible pretexts in order to get rid of an uncomfortable subject and relieve them- 
selves from a supposed present inconvenience ; but to deal out to her that measure of 
even-handed justice, which shall lend logive strength and durability to the union by 
.strengthening the confidence of the individual States. He has subjoined in an Ap- 
pendix the letter of Mr. Preble lo Mr. McLane of 25lli January, 1031, considering 
it as presenting a succinct abstract of Ihe wliole merits of (he original controversy. 
He has added extracts from the ofTicial report of Mr. Deane, and from a letter of 
Mr. Kavanagh as explanatory of the origin of the Madawnsca settlement and the 
progress of provincial British encroachment and usurpation. Finally, he has ap- 
pended extracts from the Arguments of the Agent on the part of Great Britain 
under the Treaty of 17'JI-, with a letter from the British Minister, then resi<lent at 
Washington, in order that in connection with the debate in Parliament on the pre- 
liminary articles of 1732, ihe perfect understanding of all parlies, in regard to the 
highlands of the treaty may be seen without further research, LINCOLN. 



No. 1. 
Power of the Arbiter.. ..Intention ot Parties.. ..Ques- 
tion Submitted..*. Opinion. 

We assume it as a principle, not to be contested^ that as the 
United States and Great Britain stood in relation to each other 
and to the King of the Netherlands as independent nations, the 
King of the Netherlands had no power whatever over any 
question or difference between the United States and Great 
Britain, beyond what those two governments expressly and by 
mutual agreement delegated to him. It w^as not for him to 
extend his powers by remote inferences, of which he was to 
constitute himself the sole judge, nor to enlarge and aid his 
jurisdiction by indefinite and latitudinarian construction. It 
was not for him to assume the office and attributes of a friendly 
compounder, governed by no mle or principle but his own 
discretion, unless such an office and such powers were solemn- 
ly and expressly conferred upon liim by the high parties inter- 
ested. Let us now turn our attention to the Treaties and Con- 
vention between tlie United States and Great Britain, which 
relate to this subject, in order to ascertain what powers were 
delegated to the Arbiter. 

The treaty of independence of 1783 provides — "And that 
*'all disputes, which might arise in future on the subject of the 
"Boundaries of the said United States, may be prevented, it 
"is hereby agreed and declared, that the follo^nng are and 
"shall be their boundaries, viz : from the north-west angle of 
"Nova Scotia, viz : that angle which is fomied by a line drawn 
"due north from the source of the St. Croix river, to the high 
"lands, along the said high lands, which divide tliose rivers, 
"that empty themselves into the river St. LawTence from those 
"which fall into the Atlantic Ocean, to the north westernmost 
"head of Comiecticut river; ******* East, 



"by a line to be drawn aloii<; the middle of the river St. Croix, 
"from its mouth in tlie bay ol" Fundy to its source; and from 
"its source, directly north, to the aforesaid high lands, which 
"divide the rivers that fall into the Atlantic Ocean from those 
"that fall into the river St. Lawrence." 

Tile Treaty of Client of 1814, recites, "Whereas, neither 
''that point of the high lands lying due north from the source 
"of the river St. Croix, and designated in the former treaty of 
"peace between the two powers, as the north west angle of 
"IVova Scotia, nor the noithwesternmost head of Connecticut 
"river, has ijet been ascertained ; and whereas, that part oi the 
^'boundary line between the dominions of the two powers^ 
"which extends from the source of the river St. Croix, directly 
"north to the abovementioned northwest angle of JXova Scotia, 
"thence along the said high lands, which divide those rivers 
"that empty themselves uito the river St. Lawrence, from 
"those which fall into the Atlantic Ocean, to the northwestern- 
"most head of Connecticut river; thence down along the 
"middle of that river to the forty-fifth degree of north latitude, 
"thence by a line due west on said latitude until it strikes the 
"river Iroquois or Cataraguy ; has not ijtt been surveyed,''' &:c- 

Excluding from the present inquiry what has no relation to 
it, or relates exclusively to the northwcsternmost head of Con- 
necticut river and the forty-fifth parallel of latitude, it is mani- 
fest the sole point dra\vn in question by the paities to the 
Treaty of Ghent, was the precise place on the surface of the 
earth of the northwest angle of IVova Scotia, it being mutually 
understood and solemnly agreed by the parties, as it had before 
been done by them in the Treaty of 1783, that the angle in 
question was to be found at a point due north from the source 
of the ri\'er St. Croix and on the higiilaiids, ox point de por- 
tage, which divide those rivers that empty themselves into the 
river St. Lawrence from those which fall into the Atlantic 
Ocean, l^ln^, Y>\-aco, or point thus situated, \\\e parties agree 
"had not yet been ascertained," and the straight line due 
north from the somce of the St. Croix to that point anil the 
line from thence along said highlands westerly ''had not yet 
been surveyed.^' "I'or these several pinjtoses" the 'IVeaty 
provides, "two Commissioners shall be apjioiiited.'" It would 
be dilHcult perhaps to describe and define llie objects and 
powers of the Conunissioners in tenns more ))recise and less 
liable to misconstruction. Lender the solemn obligations of an 
oath "to examine and decide inqiartiailv ." they were author- 



5 

ized ami required "to ascorlaia ami (iulenniiie (lie points 
"aforesaid in conConiiity with the provisions of the 'I'reaty of 
*'peace of 1783, and to cause the boundary aforesaid from tlie 
"source of the river St. Croix to the river Iroquois or Catara- 
"guy, to be surveyed and marked according to the said pro- 
'' visions." 

The said Commissioners were also required to ''make a 
map of said boundary" and to "particularize the latitude and 
"longitude of the northwest angle of Nova Scotia." It was 
further agreed, that in the event of the two Commissioners 
difiering upon all or any of the matters so referred to them, 
they should "make a report or reports, stating in detail the 
"points on which they difiered, and the grounds upon which 
"their respective opinions were formed." And the high par- 
ties interested "agreed to refer the report or reports to some 
"friendly sovereign or State, who should be requested to de- 
"cide on the differences, which should be stated in the said 
"report or reports." And the high parties interested "engaged 
"to consider the decision of such friendly sovereign or State 
"to be final and conclusive on all the matters so referred." 
The decision of the Arbiter, therefore, was to be on the mat- 
ters so referred. The matters so to be referred, were solely, 
exclusively, and expressly, limited to nscertainhig that point of 
the high lands described by the Treaty lying due north of the 
source of the river St. Croix where was to be found the north- 
west angle of Nova Scotia, and to the ^'impartiaV' ''surveying^' 
and ^^marlcing" on the surface of the earth "in conformity 
with the provisions of the Treaty of peace of 1783," of a 
portion of the boundary line of the United States, as prescribed 
by that Treaty — to wit : "that line drawn from the source of 
"the St. Croix river directly north to the aforesaid higiilands, 
"which divide the rivers that fall into the Atlantic Ocean, from 
"those which fall into the river St. Lawrence ;" thence "along 
"the said highlands which divide those rivers that empty them- 
"selves into the river St. Lawrence, from those which fall into 
"the Atlantic Ocean, to the northwesternmost head of Con- 
"necticut river, etc." 

In attempting to run and mark this line as agreed by the 
parties, the British New Brunswick Agent absurdly contended 
that the height of the land which bounds the southern border of 
the basin of the St. John and separates the rivers that fall into 
the St. John from those Avhich fall into the Penobscot, with a 
slight deviation so as to meet Mars Hill, standing on the south 



slilu of llic St. John between two of its tributary streams, con- 
stitutes the high lands which divide those rivers that empty 
lliemselves into the river St. LaAvrence from those whicli fall 
into the Atlantic Ocean. The United States, on the other hand, 
contended thai the highlands of the Treaty were tiiose which 
had always been known as such and bounded the bason of the 
St. Lawrence on the south side of that river. Hence arose 
the (juestion, '-which are the highlands described by the Treaty 
of 1783 as dividing those river's that empty themselves into 
the river St. Lawrence from those that fall into the Atlantic 
Ocean ; at a point on which said iiighlands due north from the 
source of the river St. Croix it was agreed, was to be found at 
the date of said Treaty the northwest angle of Nova Scotia ?" 
Giving- to the language of the Treaty of Ghent a liberal con- 
struction with a view to the declared intentions of the parties this 
was the question, and the sole question, so far as IMaine is con- 
cerned, submitted by the Convention of '29th September 1827, 
to the Arbiter. "It is agreed," says that Convention, "that the 
"points of difference which have arisen, in the settlement of the 
"boundary ** as described in the fifth article of tiie Treaty of 
"Ghent shall be referred as therein provided to some friendly 
"Sovereign or State who shall be invited to investigate- and 
"make a decision upon such points of difference." Agairi 
"the map A. ** has been agreed on by the contracting parties 
"as a delineation of the water courses, and of the boundary 
"lines in reference to the said water courses, as contended for 
"by each party respectively." Instead of deciding, or pretending 
to decide, the question raised, which resolved itself sini])ly into 
"the ])oint" of departure "to be ascertained," as described and 
established by the Treaty of 1783, the Arbiter studiously 
avoids doing so ; and, after suggesting certain pretended diflicul- 
ties, proceeds to recommend a totally different and new line of 
boundary, repugnant to the Treaty and at variance with the- 
airreemcnt of the parties, viz : the bed of a river instead of 
highlands dividing ri\ers. 

The language and description of the treaty is as definite 
and precise and free from all obscurity as it is possible for 
iiuman language to be. "A line drawn frorn the source of 
the river St. Croix directly north to the hii(h/ands which 
divide the rivei-s that fall into the Atlantic Ocean from those 
which lall into the ri\er St. Lawrence, alntitr the hiirhlnnds 
which divide," hic. lianguage e(|uivalent to this is familiar in 
the treaties of Europe, it is ol" no consequence to such a 



description whether the lands which divide the rivcis arc niorn 
or less elevated. The principle of dividing the rivers and 
not that of height, is the governing principle. Compare this 
language with that of the recommendation of the King of the 
Netherlands — ''A line drawn due north from the source of the 
river St. Croix to the point where it intersects the middle of 
the deep bed of the river St. John, thence along the middle of 
the deep bed of that river ascending to the point ivhere the 
river St. Francis empties itself into the St. John, thence along 
the middle of the deep bed of the river St. Francis ascending 
to the source of its southwcstcrnmost branch, thence a line 
drawn due wesf to the highlands which divide the rivers 
and thence along the highlands. Here as we have already- 
remarked we not only have the bed of a river instead of high- 
lands dividing rivers, but from the source of the river selected 
we have a due west course to the highlands instead of a due 
north course. If we take a map of the country and by aid of 
it examine and compare the description and boundary of the 
treaty ^^^th that of the line of the Arbiter, no language can 
make the discrepancy more plain, or more perfectly demonstrate 
that the Arbiter has undertaken to make a new treaty for the 
parties instead of executing those already in existence between 
them. 

We have said the question in its largest extent, before 
the Arbiter, was, "which are the highlands of the treaty." 
Strictly and more correctly speaking the question raised and 
submitted was 'where is the northwest angle of Nova Scotia,' 
it being acknowledged and agreed by the parties that said angle 
is on highlands of a certain definite description. The question 
raised by the Agents of the two Governments under the Treaty 
of Ghent involved simply the point of departure, as described 
and established by the Treaty of 1783, and recognized by the 
Treaty of Ghent. This was emphatically the question dis- 
cussed, and on which the Commissioners differed. Whatever 
was said in regard to highlands was said solely T\ith a view 
to establish the point of departure. When that "point" should 
be once, "ascertained" as required by the Treaty of Ghent, 
there was no difference of opinion between the Commissioners 
as to the place of the boundary line or the manner in which it 
should run to or from the point ascertained. Here all were 
agreed. The New Bmnswick Agent had not the face to 
claim, nor the British Commissioner the hardihood to sanction 
or suggest any other manner of running the line from the point 



r.f ilt'])ariuro wImmi ascertained, than surli as was prescribed bv 
the 'JVeaty, viz. along; highlands dividing rivers — His Nether- 
land Majestv liaving selected the bed of the river St. John as 
liie point of departure was aware that the Commissioners 
would be embarrassed in any attempt to run from thence along 
liighhinds dividing rivei-s. Hence, not to decide existing points 
ol dilil'rcMce, but such as probably would arise, be proceeds 
gratuitously to suggest that the line should not be drawn from 
the point of depai'ture along highlands dividing rivers, but up 



river. 



It is worthy of remark, and it is but an act of justice to the 
Arbiter to remark in this place, that in giving liis advice on this 
branch of the subject before him, he does not make use of the 
language of decision (il doit etrc considere) but studiously 
employs that of recommendation (il conviendra) tiiat is to 
say that in his opinion tlie line he proposes would be a suitable 



one. 



No. 2. 
Recommendation not Obligatory. 

We have stated in our former number that in order to ascer- 
tain the powei-s of the Arbiter we must look into the agreement 
of the parties, that is to say, into the Treaties and Convention 
between the United States and Great Britain. There is in such 
cases from the very nature of the transaction no implied power. 
Every man feels within him, as the dictate of common sense, 
that a consciousness of the delicacy of the oflice, and a proper 
respect lor the high parties interested, impose it as a mle, that 
the arbitrating Sovereign should never take upon himself to ex- 
tend the limited special powers delegated to him, beyond the 
most plain, obvious meaning of the solemn, express stipulations 
of the parties. It is not only indelicate, — it savors of assump- 
tion in such ca.ses to resort to inference and constniction in order 
to enlarge his authority. 1 o maintain that the Arbiter is the 
.sole judge of the powers delegated to him and of the measure 
of his di.scretion, is to confer upon him the power to make trea- 
ties for the parties as well as to execute them. 

When the King of the Netherlands was invited by the 
United Slates and (ireat Britain to accept the functions of 
Arbiter, copies of the Treaties and Convention under which he 



was to act, wcix' placed In liis liands in order that he might 
fully conij)rehend the nature and extent of the powers delegated. 
Ten days afterwards he returns an answer hy his Minister of 
Foreign Aliairs in which acknowledging the receipt of the invi- 
tation to accept '7eA- fonctions (rArbitre," and attaching a 
high value to this mark of confidence he accepts (''Ics fonctions 
d'Arbitre'^) the functions of Arbiter. Such was the language 
of his Majesty, a\ hen after mature consideration with the Trea- 
ties and Convention before him, he concluded to accept the 
high honor the United States, in compliance with the wishes of 
Great Britain, had agreed to unite in conferring. If in the 
letter of his IMinister of Foreign Affairs, of January 22, 1829, 
instead of accepting les fonctions cfArbitre, he had professed 
to accept the functions of a f'icndly compounder, the United 
States would have been unfaithful to themselves and wanting in 
duty to the States immediately interested, if they had not forth- 
with taken the necessary measures to correct the misap})rehen- 
sions of his Majesty. But at that moment there was no such 
niisappreliension. 

We are led to inquire how it was that after the lapse of two 
years, after the revolution in France, after the successful revolt 
in Belgium and at the time when unable to sustain himself, 
he was calling upon England as his '■'■ally" to fulfil her treaty 
stipulations in which she had guaranteed to him the integrity of 
his kingdom, how it was I say, that he found himself under this 
great cliange in his position, invested with new and enlarged 
po\Aers having accepted as liis decision informs us "'Ics fonc- 
tions d'Arbitrutenr.''^ This tenii ^'■arbitrateur," as my author- 
ities inform me, is not properly a French word any more than 
nisi jnius or habeas corpus are English expressions. It is a 
term simply of French law and means a "friendly compounder." 
"Arbitre'' on the contrary implies no such power to relax from 
strict right. Boniface, one of the best lexicographers in France, 
thus points out the distinction of which we are speaking. 
^'■Arbitrateur, (terme de loi,) amiable compositeur, it qui on 
^'donne la liberte de se rcldcher du droit : — CArbitre, au con- 
"traire, doit guardcr les formalites de justice." Who but a 
lawyer, ready to resort to the most paltry subterfuges of the 
profession, would ever have had recourse to such a substitution of 
terms in order to give countenance to the conversion of certain 
limited and specific powers into those of unlimited discretion. 
Even this substitution of terms, and the new and more extended 
powers to be derived from it, were not satisfactory to the Arbi- 



10 

ter's mind. He was coni<c"iuus tli;it he u;i> not ran\ ini: into 
eflect tlie Treaty of 1783, nor coiifniing himsell witliin tlie 
poweis ilclei:ated nor discliara;in<; the I'luietions of Arhiter, as 
prescribed by the Treaties and Convention between tlie parties 
interested. Henee, thovi2;h in decidinn; the question submitted 
in regard to the nortlnvesternniost bead of (Connecticut river, 
he makes use of the appropriate language of decision, (il doit 
etrc considcrc) when he gives his advice in regard to that por- 
tion of the line, in which Maine is more immediately interested, 
he as already remarked, studiously avoids the language of 
decision and substitutes that of sim])le recoiinnendaflon (H 
convicrulra,) 

We have seen that the express, declared and sole intent of 
the fifth article of the Treaty of Ghent was to provide for the 
surveying and marking on the surface of the earth, in conform- 
ity with the treaty of 1783, a portion of our boundary as de- 
lined and described by that treaty. The language employed 
in that description is so definite and precise, that it jjrofessesof 
itself to preclude and prevent all disjjute on the subject of 
boundaries. In the debate in the House of Commons,- 17th 
February, 1783, on the preliminary articles, T. Pitt contended 
that ''the great excellence oilhe Treaty" was that It so '-clearly 
"and so plainly described the limits olthe dominions of Great 
"Britain and America, that it was impossible they cnuld be 
"mistaken, therefoie it was impossible there should in fiiture be 
"any dispute between them on the score of boundaries." This 
curious debate, as well as that in the House of Lords on the 
same day, prove incontestibly that the boundaries as now 
claimed by the United States, were then understood by the 
British Ministry and by both Houses of Parliament to be the 
boundaries described and established by the Treatv. The very 
objection that "the line of boundary delivered Canada and 
"iNova Scotia fettered into the hands of the Ainerican Con- 
'■gress," and that "the passes and carrying places" were all 
delivered up to the Americans, was then urged by the Earl of 
CiU-lisle and others in the Lords and by several speakers in the 
House of Commons ; but what is jU'rhaps more in jmint, the 
kiirlilands of the 'Vnatij north from the source of the river St. 
(Cnjix were ex|)rossly recognized as those ''near the river St. 
Lau'renre." iNotwitlistanding these and other objections, the 
j)re!iuiiiiary articles were ap|)ro\ed, and, on the 3d of Septem- 
l)er following, the definitive Treaty of 1783 was signed. There 
was no pretence or suggestion made at that day by aii\ person 



11 

thai iIk; bouiKlaric's picst-iihcrd by llic 'IVealy were or could be 
any other than tliose now contended for by the United Stales. 
The en»;raved Map of "The Rebel Colonies," published 
at London, r26th Feb. 1783, by the reporter of the debates in 
Parliament, on the preliminary articles as illustrative of and to 
accompany those debates, removes every possible doubt on the 
subjtH-t. At the date of the treaty of 1794, the only question 
which it was supposed could arise in regard to the boundaries, 
as prescribed by the treaty of 1783, related to the river St. 
Croix and its source. This difficulty was pro\ided for. Tiie 
boundaries of 178-1 were recognized by the treaty of 1794 ; 
and in executing the provisions of this latter in r(?gard to the 
St. Croix and its source, the highlands, as now claimed by the 
United States, were then recognized as '"•the highlands" of the 
treaty by the British Agent. What was the tiaie intention of 
the parties as expressed in their solemn stipulations in the 
treaties of Paris and Ghent, therefore, is too manifest to admit 
of doubt or cavil. There is no room for inference or con- 
struction. 

Has the Arbiter carried into effect that intention, — has he 
even professed to do so ? We contend if he had professed to 
do so, that he has committed such a gross, palpable and self- 
evident mistake, that no Court of Chancery would ever con- 
firm or carry into effect such an award. We contend that he 
had no authority delegated to him, other than what was given 
for the sole and express purpose of carrying into full effect, 
without variation or modification, the treaty of independence. 
He was no more authorised to depart from that Treaty than the 
Commissioners who were under oath "to ascertain and deter- 
mine in conformity with its provisions." Who can maintain 
that the United States ever did consent to refer to a humble 
dependent aUi^ of Great Britain the question whether the 
Treaty of their independence should be repealed either in 
wholo or in part ? We maintain that the Arbiter does not pro- 
fess to carry into effect that Treaty, but, on the contrar}', does 
profess to reconmiend a new line — he does not decide which 
is the Treaty boundary, but merely recommends one, which, 
under the influence then operating upon him he thought might 
be a suitable one. We maintain that he not only went aside 
and beyond the specific powers delegated for a special purpose, 
but that it is evident he was conscious he was doing so ; and 
hence, assuming to act in a new and different capacity, he 
employed the language of recommendation and not that of 



IS 

decision. Wc contend, therefore, that excepting, perhaps, In 
respect to the norihuesternniost head of" Connecticut river, 
his opinion imposes no obligation on tlie United States, but is 
merely void. JN'or is the good faith of the United Slates in 
the slightest degree committed. They have, to the utmost 
extent, fiillilled every treaty stipulation. They have done 
more : They have suffered to he tlrawn in question what was 
not susceptible of doubt. They have sutiered a bold and 
reckless invasion on their rights perpetrated under color of the 
Treaty of Ghent. They liave discussed a question which 
they never ought to have listened to for a moment. As well 
might they have discussed the question, "»V/(«// the United 
States remain free and independent V' Nay, lest it should be 
urged that acquiescence on their jrart in the award was to be 
presumed from silence and delay, the Minister of the United 
States at the Hague entered his caveat, notifying all parties 
interested that tlie rights of the United States, wliatever they 
might be, must be regarded as reserved to them in their 
full extent, without their being supposed to be conniiltled by 
any constmctlve assent or acquiescence. The rights of the 
State, therefore, to its territory, remain unimpaired, and the 
obligations of the United States, arising under the hazard- 
ous stipulations of the Treaty of Ghent and the Conventioa 
of 1827, have been fully redeemed. 



No. .3. 
Recommenration how made Obligatory. ...Tueatv mak- 
ing POWER.. ..Limitation. 

The doctrine, which we are disposed to maintain is, that 
neither the whole nor any portion of the territory of a State, 
can be taken from it without the consent of the State interest- 
ed, whether for the purpose of being attached to anotlier 
Slate, erected into a new State, or transferred to a foreign 
power. It is very certain that the principle which will justify 
the taking of a part will justify the taking of the whole, and if 
one Stale may thus, without its consent, be put out of the pale 
of tl;e Union, so may more. The constitution of the United 
Slates assumes to "guarantee to every Stale in this Union a 
ropiihliran form of 'government." and '^to protect each of them 



13 

against invasion.'" How is this f^uaranty fulfilled ulii-n a 
State, or a portion of it, is voluntarily abandonee! by the United 
States in time of peace, transferred to a foreign power, and 
placed under a monarchical government, the State itself mean- 
while constantly remonstrating and protesting against the pro- 
ceeding ? Congress is vested with the power to dispose of 
the territory, or other property bclon<rin<r to the United States, 
but even here it is expressly pro\ided that nothing in this 
constitution shall be so construed as to prejudice any claims of 
any particular State. Waiving for the moment, however, 
this branch of the subject, it apjjcars to the writer of these 
observations, that unless the constitution in its prescriptions, as 
well as in its guaranties and limitations, is no longer to be re- 
garded — the only mode in which a State or States, or any 
portion of a State can be peaceably transferred by the United 
States, to a foreign power, is by Treaty or in pursuance of 
Treaty. We say peaceably, because in time of war a State or 
several Slates might be contjuered by a foreign power, and it 
might be impossible for the unconquoi-ed portion of the United 
States to reconquer the territory lost. In such a case the rights 
of States and of the United States are alike swept away by vio- 
lence. The constitutional obligation to defend the territory and 
repel invasion, is suspended by the want of physical power to 
fulfil it. Cases, in which the rights of States and of the United 
States are wrested from them, and each is compelled to submit to 
superior physical force, afford no rule of constniction, either as 
respects the powers of the United States or the rights of a State 
under the constitution. Cases like these are analogous to the 
theoretical right of resistance in a people. It is saidlo exist un- 
der all forms of government, but is recognized by the constitution 
and laws of no government. The constitution of the United 
States makes no provision for the supposed case of conquest. 
The statesmen and heroes, who had achieved our independ- 
ence, and who framed that instrument, would have blushed to 
recognize in it that such an event was possible. They pro- 
vided for mutual defence, but not for submission ; for defending 
the territory of each and rei)elling invasion, but not for trans- 
ferring or surrendering up a State, or any portion of a State, to 
the mother country, or to any other foreign power. These princi- 
ples come in aid of the positions we have already endeavored 
to maintain, that it was and must have been the sole intent of 
the stipulations in the Treaty of Ghent and the Conven- 
tion regulating the submission to an arbiter, to provide for car- 



11 

rying into full and coin))leie eftert, wiihout xaiiation or incHlil'i- 
caliuii. tlio Treaty of 178.'J. But to return to the mode of 
traii><f(Mriivj; the territory of a State by the United Sl;ites to a 
foreign power. W c have said, \vai\int; tiie question of assent 
of the Slate interested, it must hu hy Treaty or in pursuance 
of Treaty. If the recommendation of the king of the Neth- 
erlands, were a decision in jjursuance of the Treaties and 
Convention between the United States and Great Britain, 
simply carrying into effect the manifest intent of the stij)ula- 
tions, in strict accordance with the provisions of those Treaties, 
without the assumption on his part of any pow er not expressly 
delegated to the Arbiter; — .such a decision would have been, 
in good faith, equally obligatory as if inserted in tiie body of a 
formal Treaty. But for reasons already explained in preced- 
ing numbers, that recommendation has, it is believed, no such 
binding eflicacy, but is merely void. It can therefore be- 
come obligatory only by being formally accepted. It can have 
the effect of Treaty only by being ratified by the Treaty 
making power. The President may reject, on his own re- 
sponsibility, but it requires not only his assent, but that of two 
thirds of the Senators present, to give to an instrument the 
validity and force of Treaty. Further, the constitution of the 
United States provides that, "This constitution ** and all 
"Treaties made, or which shall be made, under the authoritv 
"of the United States, shall be the supreme law of the land." 
But can the constitution itself, or any of its proA isions, its obli- 
gations and guaranties, be repealed by Treaty ? ^Ve contend 
not. Such a doctrine would give unlimited and uncontrollable 
power over the rights and liberties and persons and property 
of the people and the States, to the President and two thirds 
of the Senate. If they can modify or repeal the constitution 
in j)art, they can wholly change it. jr repeal it altogetluM-. It 
is no answer to say there is no danger that such men will ever 
abuse their authority. TIk^ people of the United States hold 
their rights and liberties at the will of no man, or body of men, 
however respectable. The very form and ])ressure and genius 
of our institutions are opposed to such a doctrine. The Treaty 
making jwwer is subordinate to the constitution and necessarily 
limited and restrained by its provisions. 

Note. The rlobatcs ami map refi.'rrcil id iin- lo In.- IoiiimI in Hew 's ['oliiiral .Mag 
azinr, I.niulon, 17B3, vol. 1. 



Consent of a State necessary to the cession of ith 
Tehritouy. 

In oxaminiiii:; a constitutional question, it will not be forji;ot- 
ten 4^hat the government of the United States iss not a govern- 
ment unlimited and absolute in its powers, but of special and 
modified sovereignty. It can neither bind the States, nor the 
people of the United States, in all cases whatsoever. But 
the power to transfer a State to a foreign government necessa- 
rily implies an absolute and unlimited control over the political 
institutions and existence of a State, and over the jiersons and 
property of its citizens and inhabitants. If the United States 
may transfer a State without its consent to a limited monarchy, 
like that of Great Britain, they may transfer it to an absolute 
one, like that of Russia. Such a doctrine at once annihilates 
all pretence of State Rights and State Sovereignty. In prin- 
ciple there is no dili'erence, in the claim or exercise of such 
a power, whether a))jilied to a part of a State or to the 
whole ; whether the i)opulation on its territory be scattered or 
dense ; whether the State be remote and feeble, or central 
and powerful. These latter considerations might address some 
grave questions to the discretion of the government, but they 
affect not, in the slightest degree, the abstract princi|)!e of its 
vested and rightful powers. If we turn to the constitution of 
the United States, we find enumerated, among the declared 
motives and objects in view, in framing and adopting it, those 
of "forming a more perfect imion," — "providing for tlie com- 
mon defence," and "securing the blessings of liberty to ourselves 
and our posterity."' In pursuance of these objects, the United 
States undertake expressly to "guarantee to every State in this 
Union a republican form of government," and to "protect each 
of them against invasion." As the United States assumed up- 
on themselves this paramount obligation, it became proper to 
guard against the peace of the nation being committed by hos- 
tile external operations on the part of a State. Hence the con- 
stitution provides that "no State shall, without the consent of 
Congress, * * * engagcin ivor, unless actualli/ invaded," 
or in such imminent danger as will not admit ofdclav. Ai^ain, 
to prevent all misconception of the extent and meaning of its 
provisions, it is further declared "the powers not delegated to 
the United States by the Constitution, 7ior prohibited by it to 
the States, are reserved to the States respectively , or to the pco- 



16 

pie." \\ lialcver suneiKlers of power lliercfore, were made on 
the pai1 of the States to the United States, it is clear, if reser- 
vations in a compact for the henefit of the weaker party mean 
any thing, each, as originally a sovereign and inde})endent })ow- 
er, did reserve to itself its j)ristine right of repelling all invasion, 
and mainta'ming the integrity of its dominion and territory. 
AVhat frontier or Atlantic State would have consented to enter 
the Union, if by doing so, she placed herself helpless at the 
mercy of every invader, provided the United States should be 
slow or remiss in fuUilling their guaranties ? What State would 
have become a j)arty to a contract, w liicli rendered her liable to 
be delivered up, in spite of remonstrance, to a foreign despot, 
whenever a majority of States, yielding to a tune-ser\'ing and 
selfish policy, should think it cheaper and less troublesome to 
barter away and abandon her, than to defend her. Surely we 
are not to be told seriously that the United States may right- 
fully relieve themselves from all constitutional obligations, in 
regard to an individual State, by transferring that State to a for- 
eign power ; in other words that they can cancel a wrong done 
to a State by perpetrating an outrage against it. These are not 
the principles, and this is not the operation of the constitution, 
the object of so much pride and the theme of so much praise. 
The sages who formed it are obnoxious to no such charges, as 
such a construction of its provisions implies. 

It was not their intention to reduce the Slates, then sovereign 
and independent, fresh from the contests of the revolution, 
proud of their freedom and jealous of encroachment, to the con- 
dition of humble, dependent provinces, at the mercy and sover- 
eign disposal of the United States. Their object was the 
reverse. It was to preserve the rights of all and to produce a 
conspiring and consenting action of tiie whole, for the connnon 
defence and the welfare of the whole, as made uj) of the wel- 
fare of all and each of the j)arts. While, therefore, they pro- 
vided that the United States "shall protect cacli State against 
invasion," they did not deprive the States of the power to 
protect themselves. They foresaw that notwithstanding the 
most express and solenni guaranties, the United States migiit, 
from various causes, be hesitating and backward in discharging 
their duty towards a particular member. Hence certain pro- 
visions in regard to the militia, and the express recognition of 
the right m each State, wilii or without the consent of the 
United States, to defend its own territories. Nor is it for the 
United S'"'''"^ 'o ^ay to an individual State. \ou mav rcjiel in- 



n 

vasion from this section ol" your territory, but not from that' — 
'you may exercise jurisdiction and protect your inhabitants and 
citizens in the south, but not in the north.' Nor is it for them 
to say 'we have transferred one third of your territory to a for- 
eign power, in spite of your remonstrances and therefore your 
constitutional rit;,ht to repel invasion is narrowed down to the 
remainder — 'we have transferred the whole, and therefore it is 
annulled. The only right which is left to you and your people, 
is the right of unconditional submission to your new masters.' 
In such a case, a great State would say, 'my constitutional rights 
are elder than yours. The very instrument, which is the source 
and sole foundation of your rights, recognizes and guarantees 
mine ; and it is not for you to limit, restrain or annul thom.' 
A great State, in such a case we say, would reply perhaps, in 
this manner ; but a greai State will never have occasion to 
do so. A powerful State knowing her rights, will know how 
to protect them : — the United States will also know them, and 
know how to respect thei^. If the territories of such a State 
were actually invaded by the authorities, military or civil of a 
foreign power, instantly it would be perceived that the consti- 
tution of the United States neither requires nor contemplates 
that she should wait for orders or permission to act. While she 
called upon the government of the United States to fulfil its 
duty toward her, she would herself prepare to repel the invader, 
and if necessary by her own arm, would, with or without the 
consent of Congress, drive the aggressor from her soil and inflict 
upon the instruments of the aggression a merited chastisement. 
The rights of Maine are the same, her situation and resources 
only are different. But it is not the intention of the writer to 
pursue or enter upon an inquiry that tends to still graver ques- 
tions. His sole object is to sustain the position which, with 
all deference to better opinions, he thinks he has sustained — 
that the United States have no constitutional power to deprive 
a State of a portion of her territory and without her con- 
sent cede that territory to a foreign power. 
3 



16 
No. 5. 

TERRITOnV CLAIMKI) IJY GrEAT-BrIT.MN... JURISDICTION DE 

factc.Madawasca. 

Bit iL'hij contend for a small ■piece of territory, so remote 
and of so little value 1 Many who put this question might pos- 
sibly put it if the whole. State were dej)ending on the issue. We 
answer, because it is our right, and we cannot consent to have 
it wrested liom us by fraud or violence. But let us in our turn 
inquire, '■llou' is it, if the territory is of so little importance, 
that in violation of good faith and in the shameless disregard 
of treaties, such persevering efforts have been and continue to 
be made on behalf of the adjacent British colonies to obtain 
it V Is it in order to gain the most easy, direct and practica- 
ble channel of communication between those provinces ? Tiiis 
in time of peace never has been aixl never would be denied 
them. It is enough for us to say that, casting an eye at the 
map of the country, it will be seen that when peopled with a 
hardy race of men, as it would be before half a century, if pre- 
served to us, that ten-itory will constitute a jwint of strength 
for us and of weakness for our adversaries. In extent it is 
larger than more than one State in the Union. Why should 
INIaine yield her undoubted right, and with her right, that which 
secures to her the moral certainty, in due time, of becoming a 
lai'geand powerful State, possessing advantages of situation, and 
occupying a position important to herself, and valuable to the 
United States ? 

At the date of the Treaty of Independence that whole region 
was an unsettled wiklerness. Very soon after the pro\ incial gov- 
erimient of INew Brunswick was organized, th{t/ discovered 
and felt the immense importance of this piece of territory. 
Great Britain had begun to repent of yielding so much to the 
United States. Under various pretexts she postponed the 
withdrawal of her forces from the posts and territories in the 
north-west, and the authorities of INew Brunswick commenced 
their intrigues and encroachments in the north-east. They 
had again (lri\cn the remnants of the persecuted neiUral Aca- 
dians from their farms and their homes. These had once more 
fli.rl into the wilderness, and sought a refuge within the boun- 
daries of the United States. The seeds of new troubles be- 
tween America and Great Britain were rapidly developing. 
These unfortunate people were beyond the reach of succor on 
our pnrf. Twicp fhr\- had hern driven hv rapnrity and vio- 



19 

leiK from their limns and cottages. ThtT' were offered by 
tlieir persecutors, grants of two and three hundred acres of 
laud each, in their new residence, as security against their 
being again disturbed, and in 1790 and 1794 tliey were in- 
duced to accept them. But the tiireatening stonii was dis- 
sipated by the Treaty of 19th November, 1794 — provision 
was made for ascertaining the true St. Croix and its source. 
Great Britain agreed to ^vithdruw all her troops and garri- 
sons from, all posts and places within the boundary hnc9 
assigned by the Treaty of Peace. Provision was made that 
the" posts should be formally surrendered within a specified 
time; but except ''within the precincts or jurisdiction of any 
of the said posts" "the United States in meantime, at their 
discretion, extending their settlements to any part irithin the 
said boiindari/ line/' That is to say, the military posts were 
to be formally surrendered ; but all other places ivithin the 
boundaries prescribed by the Treaty of 1783, whichinight be 
regarded as in British possession, loere to be considered as 
yielded up and delivered over to the United States, ipso facto, 
by the Treaty of 1794. The river St. Croix and its source 
were determined in 1798. The place near where the due 
north line would cross the river St. John was perfectly well 
understood ; and the Agent of the British Government, who 
had the whole management of the business on her part, in his 
written arguments on the record of the proceedings, fully and 
explicitly acknoivledged the highlands of the treaty to be those 
noio and always claimed as such by the United States. 

The fact that the due north line of the treaty necessarily 
crosses the river St. John, was at the same time explicitly re- 
cognized also by the JMinister of Great Britain, resident at 
"Washington, in a letter addressed to the same Agent. f At that 
period, to have doubted what were the highlands of the trcnty, 
would have been regarded as evidence of want of understanding 
or of mental alienation. Here then is an end of all pretence of 
British jurisdiction, even in Madawasca. Nor is there from 
tli:it period the slightest trace of it until some years after the 
date of the treaty of Ghent. On the other hand, during tliis 
same period, we find that in 1797, 1601, 1806, 1807, IMassa- 
chusetts made large grants adjoining the due north line, and ex- 
tending to within about fifteen miles of the 'place where that 
line crosses the river St. John. Without pursuing this inquiry 
further, we refer to the official statement of Mr. Deane,t and the 

t See Appendix No. 3. t i^ce Appendix No. 2. 



20 

letter of Mr. Kavanairh. Maine is not therefore, as some seem 
to suppose, claiming territory wliicli has always been under 
British jurisdielion. She is maintaining her ancient boundaries. 
She is rksisting a system of encroachment and usurpa- 
tion, AT first secret AND STEALTHY, NOW OPEN AND Pi;^SH- 
ED WITH A HIGH HAND. 

Note. In corroboration of the universal understanding of the meaning aflixed to 
the terms '•tiie liiHjJauds wliich divide tlie rivers,'" iScc. eniploved liy the framers of 
the Treaty of Independence, we might urge, in addition to what has already been 
stated in pa^es 10, 11, that all the engraved Maps, from that in the Annual Register 
for 17tJ3 to thai of "the Kebel t'olonies" in 17i>3, and thence down to one published 
about the year 17W, concur in laying down the boundary of llu his^hlituds precisely 
as claimed by tlie t'nited States. An admirable and nearly complete collection vva* 
laid before the Arbiter. 



APPENDIX. 

No. 1. 

Letter from Mr. Prcb/c, Minister at the Hague, to Mr. Mc- 

Lane, Minister at London. 

The Hague, 25tli Jaiuini v, 18.'JI. 

Dear Sir: I had tlie honor to receive iroiii the King of llie 
Netherlands on the lOlIi inst. a document jmrportinj; to he an ex- 
pression of his opinion on the several jjoints snl)niitted to liini hy 
tlie United States of America and Great Britain relative to certain 
portions of the boundaries of their respective territories. On exam- 
ining tliat document it appeared to me that the Arbiter, overlook- 
ing tlic nature of tlie trust reposed m him, . mid tlie limitations to 
the powers conferred upon him, had assumed to set aside the trea- 
ty boundaries, and to lay down a new, and, in his opinion, more 
convenient line of demarcation. With tiiese im|)ressiuus I deenied 
it my duty to address a letter, in the nature of a protest, to his Ma- 
jesty's Minister of Foreign Affairs, a copy of which 1 have the hon- 
or to enclose. It has also occurred to me, that it might not be un- 
acceptable to yon, in this state of the question, if 1 were to suggest 
to your recollection the more important and jirincipal facts, wliirii 
liave a bearing on the controversy. 

The language of the treaty of Paris of 1783, which has given rise 
(o the contestation between the high parties interested, is, "And 
"that all disputes, which might arise in future on the subject of the 
"Boundaries of the said United States, may be prevented, it is here 
"by agreed and declared, that the following are and shall be their 
"boundaries, viz : from the north-west angle of Nova Scotia, viz: 
"that angle which is formed by a line drawn due nortli from the 
"source of the St. Croix river, to the highlands, along the said hitrli- 
"lands, which divide those rivers, that empty themselves into the 
"river St. Lawrence from those which fall into the Atlantic Ocean, 
"to the north-westernmost bea«l of Connecticut river ; thence, 
"down along the middle of that river to the forty-tifth degree of 
'north latitude ; from thence, l>y a line due west on said latitude, 
"until it strikes the river Jrocpiois or Cataraguy. ****** 
"East, by a line to be drirtvn ulong the midtlle of the river St. Croix, 



"iVoiii it« Mioulii ill tlie buy of Fiiiidy to its Bouioe; nixl, fioin il9 
"Muurce, dirrclly iiorlli, to the al'orossaid lii^lilaiiils, wliitli divide 
"the rivers iliat fall into tiie Atlantic Ocean from those that fall in- 
"to the river St. Lawrence." The nianiier of carryini^ this appar- 
ently exceedingly deHnite and lucid description of boundary into 
effect, by rnnning the lifie as described, anil marking the same on 
the surface <jf the earth, was the subject, the sole, exclusive subject, 
sjidnnitted by the Convention of the 2'Jth Sept. 1827, in pursuance 
of Art. V. of the treaty of (Jheiit, 1814, to an .Arbiter, if on inves- 
tigation that Arbiter fcjund the language of" the treaty, in his oj)iii- 
ion, inapplicable to, aiul wholly inconsistent with the topogra|)hy 
t)f the country, so that the treaty, in regard to its description ot' 
boundary, could not be executed according to its own exjiress stip- 
ulations, the United States had never submitted the question, what 
j)racticable boundary line should, in such case, be substituted and 
established; nor had they in any way, directly or indirectly, intinui- 
ted a desire that any suggestion should be made, as to what might 
be considered a suitable bouridary. Such a tptestion of boundary, 
as is here supposed, the United States of America would, it is belie- 
ved, submit to the definitive decisi<jn of no sovereign, and it" in any 
such case they should solicit tiie frieu(Jly intervention of an allij, it is 
jirobable they would expect first to be lieard, before an ojiinion was 
formed as to what line might bc> convenient, in the jiresent case 
especially as any revision or substitution of boundary whatever, 
had been steadily, and in a spirit ot" unalterable determination resig- 
led at (ihent and ai \Vashingtoii, they had not ;intici|)ated the pos- 
sibility of' there being any occasion for delt^gating such jiowcr, or 
soliciting such intervention. Tiiai such umst have been the views 
of the (ioverument of the United Stales would appear evident, not 
only from the history of the negociation at Ghent, but from the lan- 
guage of the treaty itself, which |)rovides fortlie selection of an Ar- 
biter, and delines the object and extent of the powers delegated. 
The treaty, reciting that "wh(!reas, neither that point of the higli- 
"lands lying ilue north from the source of the river St. Croix, and 
"desigiiated in the f"ormer treaty of peace i)i;tween the two powers, 
'•as the north-west aiigli; of Nova Scotia, nor the iioitli-westernmost 
"liead of Connecticut river, has yet been ascertaiii(>d ; and wFierens, 
'•that part of the boundaiy line between the dominions of the two 
"powers, which extends from the source of tin; ri\er St. Croix, di- 
"rectly north to the abovemeiitioneii north west anglt; of Nova 
"Scotia, thiMice along the said liighliinds, which divide those rivers 
"that em|)ty themselves into the river St. Lawrence, from those 
"which fall into the Atlanti*; Ocean, to the northwesternmost head 
"of Connecticut river ; thence down along the middle of that river 
"to the forty-fifih d<.'gn;e of north latitude; thence by a line due 
"west on said latitude, until it strikes the ri\er Irocpiois or Catara- 
"guy ; has not bee-n surveyed"' provides "that for these several pur- 
poses two commi.ssioners shall be; apiiointed" — .And it would be dif- 
ficult to describe and define the objects and powers of the commis- 
sioiHis in tfuins more precise anct less liabh^ to miscimstruclion. 
I'ndcr tin; s(»lcnm obligations of an oath "to examine and decide 
impartially," they were authorized and reipiired "to ascertain and 
"delerinine the points aforesaid in conformity with the provisions 



V 



"oCtlie treaty of jicace of 1783, i\tul to caiinc tlio lioimihiiy alorf'^nid 
"from tlic source of ilio river St. Croix to tlio riv(!r iriKiiioi.s or Cai- 
"arngiiy, to be siirvcycc.l and marUcil acconliiig to the saiil |)rovid- 
"ioiis." It was further ai^reed, that in tlie event of the two comtnis- 
sioners dilfering nj)on ail or any of the inattrrs so relcrn-d to tliein 
they should "make a rejiort or reports, stating' in detail the points 
"on which tlicy dilfored, and the grounds ujioti which tlu'ir rcspec- 
"tive opinions were formed." An<l liie hii,di parties interested 
"ai^rceii to refer the report or reports to soukj friendly soverei^'u or 
"Static, who should l)e re([Mested to decide on the diHertMices, which 
"sliuidd he stated in tiie said rejiortor reports." And the hii;li i)ar- 
ties interesteil "engaged to consider the decision of such triei.dly 
"sovereign or State to be final ami conclusive on all the niatters so 
"referred." The decisiosi of the Arl)iter, therefore, was to be on 
the itut tiers so to be referred. The matters so to be referred, were sole- 
ly, exdusivcli/, and exprcssli/. limited to the ^'■impartial'''' ^'■surveying" 
and ^^iiiarkitig" on tlie suriace of the earth "nt corfonnitij ivil/i the 
provisions of the treatij of p^acc o/1783," of a portion of the i)oun(!a- 
ry line of the United States, as [jrescribed by that treaty — to wit: 
'lliat line drawn from the source of tlui St. Croix river directiv north 
"to the aforesaid iiighlands, whi(di diviih^ tlie rivers that fall into 
"the Atlantic Ocean, from those which fidl into the river St. Law- 
"rence ;" thence "along the said higidands which divide those riv- 
''«rs that empty themselves into the river St. Lawrence, from tlio.se 
"which f;di into the Atlantic Ocean, to the north-westernmost liead 
"of Connecticut river, etc." 

The language already quoted of the treaty of peace of seventeen 
hundred and eighty-three gave rise to three questions, viz: 

1st. Where at a point due jiorth from the source of the river St. 
Croix, are the highlands which divide those rivers that etnpty them- 
selves into the river St Lawrence from those that fall into the At- 
lantic Ocean — at which same |)oint on said highlands was also to 
be found the north-west angle of the long established, well known 
and distuictly defined British province of Nova Scotin ? 

2d. As there is above the forty fifth [larallel of latitude, a num- 
ber of tributary streams, all, with the excej>tion of Hall's Stream 
at the date of the treaty natneless and unknown streams of the wil- 
derness and whose coud)ined waters were oidy known as fornun" 
the river Connecticut; which of the sources of all these streams is 
"the northwesternmost head of Comiecticut river?" 

3d. As the boundary of the forty filth parallel of latitufle had 
ten years before the date of the treaty of peace been run and mark- 
ed in its whole extent by the com|)etent authorities of the Sovereign 
and so continued to be understood and recognized at the date of 
the treaty by all parties interested ; the question is whether that 
old line, though not altogether accurate but by reference to wliich 
the country has become jteopled with inhabitants, shall he retraced, 
or whether a new line shall now be run and established more near- 
ly ajjproxiinaling to accuracy ? 

Prior to the year 17(i3, the Canadas from the earliest settlement 
of the country had belonged to the dominions of the King of 
France ; and prior to the same |)eriod Nova Scotia had alternately 
belonged to France an<l Great Britain. In that wilderness country 



24 

liuwever the houinliuios of iliusc titxitlie ailjuiiiin;^ IJiiiisli province 
of .Massaclitir^eits \\;\y liati not at tliat period liein prin-iscly and 
disliiK'tls (li liiicil and descrilicd. Wliile France; liaii endcavorr^d to 
iTowd tlio Ijoiindary of Canada over tlie St. Lawieiico into ilic in- 
terior of the country, Great Britain n.pcll(Ml the pretension and 
maintained lier claim to the southern hank of that river. In reirard 
to Nova Scotiu also althouij;h tlie original grant of 1(!'2"J, uhich 
gjive it its name, hounded it on the west expressly hy the river St. 
('roix, each nation as it alternately l»y cession or coiiquest hecamc 
jimsler of t!ie territory, endeavored it) its turn to push that hounchi- 
ry as far west as the river Penohscot, while the party for a moment 
no loni,'er the |»ro|)rietor, ai)andoning its former attitude and argu- 
inents, also in its turn resisted all attiMupt at encroachment. 'I'his 
contest was terminated on tlu; part of Franco hy the trc'aly of Par- 
is «)f ]7().'i, liy whicii she cedeil to Great Britain all claim to that 
whole region of country. 

On the southern horderof the river St. Lawrence, and at the av- 
erage «listanoe from it of less than thirty miles, there is an elevated 
range or continuation of hroUen highland extending from cape Ro- 
sieres southwesterly to the sources of (Jotmecticut river /or/xing the 
southerii border of the basin of the St. Lnicrence, and the Us;nt des vcr- 
sants of the rivers emptying into it. 'JMie same highlands form also 
the li<rne dts I'ersants of the river ]{istigouche and its northerly 
branches emptying into the hay des Chaleurs, the river St. John 
with its noitherly and westerly hranches emptying into the hay of 
Fuiidy, the river I'enohscot with it.s northwesterly hranches emp- 
tyiiiix itito the hay of I'eiKjhscot, the rivers Keimtjhec tuid Andro- 
scoggin whose united waters ahsorhed in the river Sagadahock 
empty through it into Sagadahock hay atid the river Conneciicut 
emptying into the hay usually called Long Island Sound. These 
hays are all oi)en arms of the Sea or Atlantic Ocean, are designated 
hy their names on Mitchell's IMap, and with tiie single exception of 
Sairadahock are all equally well known and usually designated by 
their apjtropriato names. The river St. John, several hrnnches of 
which take their rise in these highliiiids, from thirty to one hun- 
dred and twenty English miles west of the line drawn due north 
from the source ot" the St. Croix, pursuing a southeasterly course 
crosses said line, theti suddenly turning rutts nearly parallel to it, 
wiieii resuming its former directioti it winds its way through tnoro. 
than three hundred miles from its source to the Oceati ; and in its 
course, hi'sides its own rapids and those of its trihutaries. precipi- 
tates itself over one fall of ri;;hty feet height. The waters of tlie 
St. Lawrence are tidt; waters, and of course on a level with those 
at the mf)Ulh of the St. John. As therefore the higlilands or point 
dt partn^f, where the trihutaries of the St. Jolui take their rise, aj)- 
proach the St. Lawrence within thirty Fiiglish miles, it necessarily 
results frotn tin; nature of things that the country on the Atlantic 
side must contimie to rise till it roaches the dividing riiige or high- 
lands, and then snddeidy fall ofl" lowjud the river St. I^awreiice. 
But we nro not hert; left to inference. It is proved hy actual oh- 
.•«ervation and computation that the average ahsolute height of tliij 
"liene des vfrsaiit.t" nj)proximates nearly to two thousand feet. 

Such hfriiifj the general (tatures of the (^ouiitry when hy thii 



Treaty of Tiiris tlie King of Crcnt Britain hml olitamod llie undis- 
puted sovLMciifiity fif llif! wliole territory in tliat region, ?« ordvr lo 
rtmuvc. all douUs'as to tlie. Irue. boundari) of Canada on the soiitli, ns 
well Hd Cor other iiiiitortaiit purposes, iio issued Ids proclauiatioti dT 
October tiie 7tli, \7(j'-i, in wlucli lie defines and describes the southern 
boundary of the province of Quebec (t-'aiuida) in these words 
"crossini; the river St. Lawrence and the Luke (Jliaini)lMin in lorty- 
'*five degrees of north latitude passes along the highlands whijh 
"divide the rivers that empty themselves into tlie said river St. 
"Lawrence from those which fall into the sea, and also along tlic 
"north coast of the bay des Chaleurs" — thus throwing the basin of 
tht SI. Lawrence from the sources of (^Connecticut river to the bay 
des Chaleuis into the province of (Quebec. The same year in another 
y)ubli(; document, the commission to Sir James Murray as Governor 
of the province, the same boundary is detined and described in the 
same words ; and from that time in all the coitmiissions of the 
Governors of Quebec, for the twenty years preceding the Treaty of 
176i, the same si)ecification and description of that boundary from 
the somces of Connecticut river to the bay ties Chaleurs was given 
in tlie same words, to wit: "along the highlands which divide the 
"rivers that empty themselves into the river St. Lawrence from 
"those whieh fall into the sea." Nay, in 1774, the British Parliament 
enacted a public statute, in which tiiey described and confirmed the 
same portion of the boundary of the province of Quebec in these 
same identical words. Moreover, three years after the Treaty of 
peace in the commission granted to Guy Carleton as Governor of 
the province, the southern boundary is defined and described "frciu 
"the bay of Chaleurs along the highlands wliicb divide the rivers 
"that empty themselves into the river St. Lawrence from those 
"which fidl into the Atlantic Ocean to the northwcsternmost head 
"of Connecticut river." And to this moment the southern honndanj 
of Canada from the bar) des Chaleurs to the sources of Connecticut 
river is onli/ made known bi/ referring to that description. Thus for 
twenty years prior to the Treaty ot peace and for a .series of years 
afterwards in proclamations of the King, in acts of parliament, and 
in the public commissions to the Governors of the province, the 
words and description "the bigldanils which divide the rivers which 
"empty themselves into the river St. Lawrence from those whicii 
"fall into the sea" or Atlantic Ocean had become exclusivehj appro- 
priated and were U7iiversalt!f knoivn as solehj applicable to that divid- 
ing ridge or Higne des vers'ants" which bounds the basin of the St. 
Lawrence on the south side of that river. 

As the King of Great Britain, in October, 17G3, determined to fix 
and establish the theretofore unsettled boundary of Canada, by a 
natural and well defined line ; so afterwards in November of tlio 
same year be in like manner determined to settle all controversy as 
to the western boundary of Nova Scotia. Accordingly he proceed- 
ed by n solemn public act and document, to define and prescribe 
that'boiindary in these words : "Boimded by a line drawn from 
"Cape Sable across the entrance of the Bay of Fundi/ to the mouth of 
"the river St. Croix, by the said river to its soince and by a line 
"drawn due north, from thence to the southern boundary of our 
colony of Quebec." The same identical language is repeated from 
4 



time to time, ami the samt; boiiiulaiy s|iccifieil aiul dcsciiljctl in ail 
the |)iiljli(-' (lut'iimciits rLl't-iriiig to tiiat s-iiliji.-ct, tliat is, llic CDiiiinis- 
siiiijs ot llic Guvenmrs, tor ilie twenty years |ireeeilii)g the sii,nia- 
ture ot" tlie treaty o!' l/CJ}, anil the huiiie iilentieal (lescri|tlioi» "hoiii 
"the month of the river St. Croix, by the said river to its source, 
"and from thence to the Soutliern boundary of cvjr Province of 
"Ciuebec," is to this moment the [)reciso and only description of 
that boundary in the only public documents w here it is to be sonjiht 
for, the conuiiissions of the (jlovcrnors. W Jialever personal mis- 
apprehension there mii,'ht have been in the fnst instance in the 
minds of the American Commissioners, therefore, in regaiil to the 
precise \vestcrn boundary of \ova Scotia,* arising from liieir bi'ing 
])recluded l)y the war from a i)crsonal inspection of IJriiish public 
tlocuments, that niisapi)rehension had been enlntly done a\\ay by 
the preliminary discussions, prior to their agreeing to the j)rehmi- 
nary articles of peace in 178'i, and of course there can be no pre- 
tence of their want of a full unilerstanding of the subject, in Sep- 
tember, 1783. And it should be recollected there never was for a 
single moment the least misa|)prehension, or want of know ledge, 
on their part, in regard to the highlands, always known and desig- 
nated as "the higldands which divide those rivers which empty 
"themselves into the river St. Lawrence, from tiiose w liicli l;ill into 
"the sea," or Atlantic Ocean. Hence, as Mr. Adams, one of them, 
testifies, they agreed after much contestation to abide in that (iiiarter 
by the existing boundaries, or as he expresses it the charier of 
Alassachusctts Bay. 

It ap])cars therefore, from evidence in its nature conclusive, from 
authentic public documents of the highest character and authority, 
that for twenty years |)rior to tiie Treaty of 1763, the northern and 
the western boundaries of Nova Scotia, had been ])rescribed and 
defined in language the most clear and precise, and of comsc the 
place of a northwest angle so accurately indicated, that a common 
surveyor needed but to be shown the source of the St. Croix, in 
oriler to be able to set up a monument at the point of intersection 
of the northern and western boundaries; anil thus mark on tiie 
surface of the earth the precise position or locality on the highlands, 
of "the northwest angle of No\a Scotia." Aiid to this, |)rior to the 
revolution the two nations were ccjuslituent |)arts of the same great 
em[»ire and the language of King and Parliament, in their jiublic 
documents, was the ofiicial language of the whole kingdom. W hen 
theren)re the two high contracting parlies at the Treaty of i)eace, 
availed Iheinsclccs o^'iciiilli/ of that idtiitical la)i«cuos;e and specific 
description of particular boundaries, \\\uv\\ had been so long used 
and exclusively a|)propriated, i7 must he presumed that lliei/ used them 

*iMr. Adams in liis noic to fJovcrnor Cusliiiig (l.iicd i'jili Oct. 17H1, says "We 
had tx-lort! iw liirouffh llic wliolc iirgdoiacioii a variclv of niiTps." Five dillcrcut 
niaj)s pulilislic.d al London, in tin; years 17i'i.5, 1771, 177l, 1775, place the norihwcst 
ans^lc of IS'ova Scotia, on llic "hig^iilands" at the source of that lirancli of ihe river 
St. John nnvv called ihc Madawasca. One of these live is spcciallv (|uole(l in the 
report of the f'oininitlce of Congress Ifilli Aug. \'i\M. llcncc prohalilv tin- iniscon- 
C'l'ioii in ihe firsl instance on the part of tin- Aincricun ( 'oinniissioncrs \\\\o in pro- 
posing; at llii! ciiiniiiencciMciit of ihc ncyfociation. tiie river !St. John as the jioiiiida- 
ry assumed the p-t^iiioii of the noriliucsi anijle of Nova Scotia as being on "the 
highlands" die. at the source of die river Si. John. 



trt the saine meaning, and ivUk the same applicabiliti/, and extent of 
sis^nijication, in which one of the pditict had atwai/s used them, and 
the other liad alwaijs understood tliein. Tliat siicli was tlii.'ir mutual 
uiKlt'isiiimlMig wiiukl secMii to lesuit iVoui tlie |)eculiar exprussion 
ol" the Treaty — "from the northwest aM<,'le of Nova Scotia" — not 
thai supposed northwest an{,Me on tlic highlands at the source of 
the river St. John — not that nortliwost an^le on llic hank of the 
St. Lawrence, Ibrineriy insisted upon in the controversies between 
France and Great Britain — not the indefinite nortinvest angle of 
tlie original vague gratU of the province, hut tliat northwest angle, 
whitd) Iiail h'ien prescrihe<l by the authority of Iving anil I'urliainent, 
and had been repeatedly recognized i)y that authority in the most 
solemn manner, in all their public documents for the lust twenty 
years, "to wit: that angle formed by a line drawn due north from 
the source of the river St. ('roix to the highlands," etc. 'J'he high- 
lands therefore, which the United States have insisted are the liigh- 
lan<Is of the Treaty, are those alone on which the point of departure 
the actual legal "northwest angle of Nova Scotia," was established 
and to be found. They are the highlands wliich bad long been 
described by the language of the Treaty and the only ones that 
ever had been so designated or known at the time the Treaty was 
made. 

But it is contended by the Government of Great Britain that 
there is a rival range of highlands, which in all its characteristics 
better comports with the language and description of the Treaty. 
It is the dividing ridge that bomids tiie southern side of the basin 
of the river St.John and divides the streams that flow into the 
river St. John from those which flow into the Penobscot and St. 
Croix. No river flows from this dividing ridge into the river St. 
Lawrence. On the contrary nearly the whole of the basins of the 
rivers St. John and Kistigou'che intervene. The source of the St. 
Croix also is in this very "ligne des versants," and less than an 
Euiilish mile distant from the source of a tributary stream of the 
St. John. This proximity reducing the due north line of the Treaty 
as it were to a point compelled the pro\incial Agents of the British 
Government at the exi)ense apparently of consistency, to extend 
the due north line across this dividing ridge and to pass onward 
into the bnsin of the St. John; and crossing continually as they 
proceeded the tributary streams of that river they at length arrived 
in the vicinity of an insolated hill called JNlars Hill, standing nffar 
the soutiiwestern bank of the river St. John between two of its 
tributary streams, and distant about forty miles from the source of 
the St. Croix. Connecting that isolated hill by means of the divid- 
ing ridge between said tributary streams with the "ligne des ver- 
sants" as just described they claimed it as constituting the highlands 
of the Treaty, "which divi(ie the rivers that empty tliemselves into 
the river St. Lawrence, from those that fall into the Atlantic 
Ocean." 

In the absence of all and every kind of public document to sus- 
tain the line claimed by Great Britain, in opposition to the express 
language of a series of public documents emanating from the Brit- 
ish'boveniment itself for a succession of more than sixty years,— 
in oi)posilion to all the ancient British and other Maps of the coun- 



•28 

try from tlie ooiuinosl of (^aimthi in 17li'2, to llio ^;|n■ill^'illJ,' ii]) of 
new (liliioiiltics bciwceii llie L'liileil States and (in ai lirilaiii alur 
llio I'lciicli llcvohUiDii — ill ()|iii()silioii lo all llic di.'hatos in I'ai lia- 
iiifiil on the trt'aty i>l' 17."^:{ ami tin; iiia|) |Hil)lislii;(i at that tliiiu ta 
illiij-trate ihosi; ilobates — in opposition to all the reatiiie^, t(jpogiu- 
jtliy a!iil trailliitins oi" the country, and in oiipo.siiion lo the I'act that 
the noriliwc'st angle ol" Nova ricotia, the |)oint ot" departure ol" the 
treaty never was at Mars Hill nor within t»ne hundred Englitih 
miles line north of it, his Majesty the King of the Netherlands from 
consiilerations principally arising out of a position assumed that 
the river St. John emj)ties itself into the bay of Fuiidy and not 
into the Atlantic ocean, and that the river Uistigouche empties itself 
into the bay des Chaleurs and not into the Atlantic ocean, ami that 
itC(iually accords with the reijuisitions of the treaty of I7f^3 wheth- 
er the highlands that divide the rivers that cmi)ty themselves into 
the river rit. Lawrence from those that lall into the Atlantic ocean, 
divide saiil rivers "mediately" or "immediately," expresses the 
opinion that the line as claimed by Great IJritain comports etiually 
well in all respects with the language of the treaty as that claimed 
by the United States. Having thus discovered that the language of 
the treaty is ambiguous and ine.\i)licable he proceeds to set aside 
the boundary of the tr(,'aty and to propose a new and difi'erent line 
<>i' demarcation which he thinks would be a suitable one, viz : that 
the line drawn directly north from the source of St. Croix river 
shotiUl extend to the centre of the river St. John only, thence the 
i)ouinlary line should pass u|) that river to the mouth of the river 
St. Francis, thence up the river St. Francis to the source of its 
southwcsteriiMost branch, thence due west from said source until 
it intersects the line of the highlands as claimed by the United 
States, and only from thence to pass "along the said highlands 
"which divide the rivers that empty themselves into the liver St. 
"Lawrence liorn those which fall into the Atlantic ocean, to the 
"northwestcrnmost head of Connecticut river." 

Upon this branch of the subject and in reference to this proceed- 
ing on the jiart of His Majesty I conline myself to one remark that 
tiiis is the making of a new treaty and prescribing new limits in- 
Btcad of executing the old one by "ascciidining;^^ '■^survci/ing'" and 
"inarl.litg^'' its boundaries. It is giving the bucl of a river for a 
boundary instead (jf highlands dividing rivers a '"//g/ie des versants." 
I should not advert to the decision of His iMajesty on the second 
question were it not l(>r tlie purpost; of sayinu that it had appearcfl 
to the (Government of tin; United States, judging from insjieciion of 
an accurate map of the country, that thi- snmce or head, which the 
Arbiter has decided in conformity with the liritish claim to be "the 
nortliwcsternniost liead of (Connecticut river," was in fact the 
northeastern head ; yet that l)eing the point submitted, the United 
States will without doubt fullil whatever they have sti|iulal<'d. 

In regard to the third fpiestion submitte/l the Arbiter after ex- 
pri.'ssing an opinion that the 4r)th parallel boundary should l)e run 
urfti marked without reference to the line as formerly run ami es- 
tai)ll-lied, proceeds to declare llial it would be suitable that at the 
pHn-e calhil Koiise's point, the territory of the United States of 
America should nevertheless extend so as to comprehend a "fort" 



19 

there estnblislK'd and its "rayon kiloriielriqiie." Ii is tun; tluit 
tlit;re aru llio rtiiiis of an abandoned Ibrtilication fdiincil}' hnill liy 
llif! United States on a sunken point or piece of gronnd called 
"llousd's point" on tlie l)or<lurs of Lake (Jlianiplain and lliat tidii 
point is within tlie limits ot" tlie Uniti;d States according to the old 
estahlisheil line, hut will prohahly fall wilhont hy accnrate adnicas- 
nrenient. Jiiit it is ecpially true that these fads had not evtMi Ikmmi al- 
luded to in the statements, ilocnnientsand evidence sidjtnittetl on the 
)tart of the United States, and that no conimnnieation or intimation 
of the sliifhtest character in relation to these facts has ever been 
made to tlie Arbiter in behalf of the United States. As the cpies- 
tions snbniitted relateil solely to the true limits defined and prescri- 
l\ed l)y the treaty of 178^5, any alhision to Rouse's p(jint was deem- 
ed irrelevant. The Government of the United States asked for 
nothing but a rigid adhercmce to the tViith of treaties and a ready 
execution of their stipulations in an elevati'd sentiment of nati(jnal 
i^'ood faith. IJiit lor sometime |)ast His iMajesty the Kiiiir ot" the 
Netherlands has had his attention strongly excited to the sidiject of 
convenient boundaries. 'I'here is, says the Court Journal of the 
Hague of the lltli instant, "un rapprochment bizarre" between the 
position whicli the King occupied as Arbiter in regard to the boun- 
daries between Great Britain and the United States and that which 
Great Uritain occupies in regard to the bounilaiies between Holland 
and Belgium. VVIien, therefore, the Government of Great Britain 
urged a claim to a [)ortion of the ancient territory of the United 
States, on the ground that it was convenient and necessary to her, 
and His Majesty felt the power and yielded to the iiiHuence of the 
argument, it was natural that he should look around for something 
which might, in order to save ajtpearances, afforfl an ostensible 
application of the same principle in favor of the United States. — 
And this mode of saving appearances could not be miacceptable to 
Great Britain inasmuch as it originated liom the suggestion of her 
own Agents. 

With sentiments of res|)ectful consideration, 
1 have the honor to be. Dear Sir, your 

very obedient servant, 

\VM. P. I'llEBI.E. 

Uis Excellency, Louis »McLa.\k, 
Eniw/ E.ctraordinanj and .Minitiicr I'lcnipolenlianj oj Ihc U. !S. .^. 

London. 



No. 2. 

Evtraci from the Report of John C Dmnc, Esf/iiirc, Asrcnt, 

^c. to the Governor of Maine, dated Nov. 2f/, 1H3L 

"In 1782, Pierre Lizotte, then a boy of fourteen years of age, 
strayed iVom his home in Canada and found his way to the Indian 
settlement at the mouth of i\Iada\\ asea river, where he continued 
fluring the Ibllowing winter. On his return to his friends, his rep- 
resentations were sucti us induced his half brother, Pierre Dupcnr. 



30 

tu itaumpnnij him to tfit same place, for the purpose of trade ivilh the 
Jiiiliiins, the year fulluiciitg. 'I'liey coiiiiiiciiccd ilieir l>ii.>-iiit.'s.-i on 
llio s(Hitii sidu of the St. Joliii, iroiii two to llirou miles below tlie 
iiioiitli of Mailawajca river. Theij were the first persons who coiil- 
mencid their residence at .Maduuaaai. 

Two or three years afterwards, say in 178t), the Acadian or neutral 
French, whose ancestors liad been settled at the heail of the IJay of 
I'uiiily, or ill the country whieli is now called Nova iScotia, atitl 
had been driven from thence and had established themselves at St. 
.Inns, (now Fredericton) and in that nei<;lil)orliO(id. being disturbed 
by the introduction of the refugees and the acts of the government 
of New Brimswick, which dispossessed them of their farms, fed up 
the St. John in search of places of residence out oj the reach oj Briiisk 
laifs and oppression. Twenty or more lamilies moved and settltul 
themselves on the St. John, helow the trading establishment which 
Pierre Dnpcrre had made a lew years prt^vioiis. Here they con- 
tinued in the immolested enjoyment of their |)ro[»erty for some 
years. 

Pierre Duperre being a mnn of some learning, ba(\ great influence 
with his neighbors, and the British authorities oj the province of ,\\iv 
Brunswick., seeing his consequence in the settlement, if o-rni early to 
caress and flatter him, i\ud sometime in the year 17'J0 induced him 
to receive from them a grant of the land he occupiGd. Infuenced 
as well by Pierre Duperre as with the hope of not again being disturb- 
ed and driven from their possessions, as they and their aiicesloi's 
more than once bad been by the British, this large body of French- 
men were also induced to receive grants from J\\w Brunswick of the 
land they possessed, i'or which some were required lo pay ten shil- 
lings and others nothinn;. 

About this period, 1790, another body of the descendants of tlie 
Af-adian or neutral French, who liad sought a refuge on the Ken- 
nebeckasis, were there distmbed in their possessi(ms b^ the refu- 
gees and the acts of the government of New Brunswick ; they also 
(luit their possessions and sought in like manner a reiuge from op- 
pression with their countrymen at JMadawasca. After having re- 
sided at iMadawasca some years, they were induced as their coun- 
trymen had been, to receive grants of the land which they had 
take-n into possession from the government of New Brunswick. 

Single families afterwards added themselves to the settlement. 
A few lamilies established themselves in lr?07, a few miles abo\e 
tiio mouth of Madawasca river. Fhey all lived in mutual good fl- 
lowsliij), rrcofruising and practising the diilics of morality and reli- 
gion and governed solely by the laws of honor and common sense. 
They continued to live in this manner to as late a period as IS\S. '['he 
British had made no grant higher u|) the St. John than Pierre Du- 
]>erre'8, and had exercised no other acts of jurisdiction than those 
already mentioned, mdess the transportation of the mail through 
to ('anada and the granting u Commission to Pierre Duperre in 
17'J8 as a Captain of IMilitia, there being no militia or military 
organization there until 2d years afterwards, may be called acts of 
jurisdiction. 

In 17'.H, the river St. Croix was determined ami its source ascer- 
tained under the treaty called Jay's treaty. At this period terminate 



m 

all acts and pretence of acts of jurisdiction in the Mtildirascn srttlc- 
vient 1)11 tlic British — and for n period if twenlij ijtars, and vntii it 
iivts discovered hij than that JMars Hdt tvas the northwest antrlt uf 
JVoiHt Scotia, tliere is not even an attempt to crercise jurisdiction. 'I'lie 
course of circiiiiistaiicL's now lit'caiiic siicli a.s iij;uiii to e.xcite tlic 
spirit of eiKToacliiiu'iit, and tiicy issiu-d two processes ajraiiist citi- 
zens of tlic United States who iiad settled in the wilderness, many 
miles beyoiwl where the JJritisli had ever exorcised any jurisdiction 
before, but these were not prosecuted. 

Ill 18'24 * Sir Howard Douglas arrived and took upon himself the 
government of the province of , Yew Brunswicli as its Lieutenant (Gov- 
ernor. li\ Decend)er of that year, he appointed ihur militia Cap- 
tains and a competent tiund)er of subalterns at Madawasca — but 
the persons npi)ointed did not accejjt their commissions until Jidy 
18'2tj — and sid)seqii('nt to that time the militia were fully orjjanizcd. 
Licenses to cut tind)er were also irranted by New Jbiinswick. 

In IMay lb"25, Lt. (iov. Doui^las granted a tract of land to Simon 
llebert, at tlie mouth of INladawasca river. \n May l&i.'y he made 
another grant to Francis Violettc of a tract at the mouth of Grand 
river. He also appointed and commissioned many other military 
officers. In 1827, seveial processes were issued against citizens of 
the United States, oidyone of which, that against John Baker, was 
ever prosecuted, but many of our citizens were driven away by 
tliein. 

In 1829 or 1830, for the first time, a civil magistrate was appoint- 
ed in the Madawasca settlement and commenced acting as such. 
In a word, //-om the period Lt. Gov. Douglas entered vpon the duties 
of his office, theij have, been constantly multiplying and extendino- their 
acts of jurisdiction. 

'JMie French inhabitants of Madawasca say tliey are satisfied their 
settlement is within the limits of the United States and that tliey 
should like to live under their laws, but the British come and en- 
force their laws iii)om them and they have been obliged to sid)init 
to their jurisdiction. 

In 1820 or IS'2 1, three or Jour persons went vp and e.Hahlished 
themselves on the banks of the Arostook. Several from the Province 
of New Brunswick and the State of Maine, the followiiiir year 
joined them. Jlftcr the commencement of Sir Howard Dougltis^s ad- 
ministration, licenses were granted to cut timber in this region also 
and civil proces.ses were served upon the inhabitants. On this i-iver 
they had not, prior to his administration, crercised any act of juris- 
diction whatever, that region adjoining the line having in fuel been 
surveyed and granted by .Massachusetts seventeen years before to the 
town of Plymouth and Gen. Eaton. 

In 17i)2, the government of Massnchusetts contracted to sell the 
tract of land between the waters of the Sclioodiac and Penobscot 
extending back to the highland of the treaty. This tract was sur- 
veyed under the orders of the Government. The surveyor running 
and marking his lines to highlands north of the river St. John 
supposed at the time to be those descril)ed in the treatv of 178.'^. 

Ill 1801 she granted the townshi)) of iMars Hill to the soldiers of 



*28lh of AuRust. 



32 

till" revolution. In 180(] slio irraiited llic lowii<:|ii]> ndjoiiiim.' IMiir^i 
Hill on lilt; W(!>l tiiDLCTlii'liI (ukI Wt'stficld Academies. In 1^07 
.slu; iriantcd a to\VMslii|) of land to the town of Plynioiitli, lyins on 
l)()ll; side.s of the Arostook and bounded east hy the line due north 
from the .source of the river St. Croi.v to the liigh.'aiids. In Jr^U8 
she conveyed ten thousand acres to (len. Eaton, bounded east by 
the last aloresaid grant. All the aforesaid grants were made j)ur- 
siiant to actual surveys, \vhi(di had been jireviously made under her 
authority. In 1808, or before^, the line I'rom the source of the St. 
('roi.K due luu-tii was run under the authority of Massachusetts as 
far as the river St. John. 

In 18"20an examination and reconnoisanre was made, under tiic 
authority of Maine, of the wliole country on ilie Alligash river and 
on the St. John, from tiie mouth of the Alligasb to the place \\ here 
the line due north from the source of tlie St. Croix intersects it. 
The same year, the census was taken in Madawasca, under llie 
laws and tin.' authority of the United States. 

In 18"2I, the Land Ag3nt of Maine seized the titidjor which had 
been cut by trespassers on the .^ro.-took. In ISQ.l, the Land .Agents 
of Maine and Massachusetts conveyed two lots,onet<) John Uaker, 
and the other to James Bacon, lying on tlie St. John, about twelve 
miles above the Madawasca. 

In 18"25, the Surveyors of Maine and Massachusetts comjdeted 
the survey of two range.s of townshij).*, extending north from the 
Monument, at the source of the river St. Croix, to within less than 
half a mile of the river St. John, and the Stati's divided l)etween 
them, according to the act of Separation of Maine from 3Iassachu- 
setts, the townships in those ranges which had not been i)reviously 
granted. 

Ill 1826, Maine and Massachusetts surveyed and divided five 
additional ranges of townshi[)S, lying west of the two ranges afore- 
said, and extcndmg nearly to the river St. Joim. An<l thf;rc never 
has been a moment during whicii JMa.ssachusetis prior to 18Q0 and 
Maine since that period, have ceased to assert their jurisdiction over 
the whole territory." 



Extract of a letter from the Hon. Mr. Kavanagh, Member of 

Congress, to Win. P. Preble, dated Nov. 19, 1831. 

"I deem it material in treating of the iiistory of the Acadian.s or 
Neutral Freiu li,/o present in prominent relief the facts iittenilin'r their 
several vv'ixrations tchich g-o most conclitsiviii/ to show that in all their 
movements, .since their exile from Aorr/ Scotia, thei/ have endeavored to 
place themselves heijond the reach of British jurisdiction. When their 
hettlemcMit was l)rokcn up in Ntna Scotia, a few families escaped 
from tiie troops and settled themselves on the Kenid)cckasis and 
otlifira near the Haye des Chaleur.s* ; but the young men who were 
not encundxMH'd bv wives and children Ih^d to Ciuebec, then under 
French rule ; there they remained until the cession of Canada to 

•For a hislnrv of tla- niiir;iKo lierc roferrcd lo. sco llaililmrlon's History of Nova 
Sci>li;i, or llio .Sorlli Aiucrir:iii Kux icw for J;imiary 1U:J(J. 



Kngland in 17G3. Tins rvcm cmisod iIumii lo «iiiii ('aiiJida ami tlipy 
lotiiovc'd to n place wliicli tlu.'y (itiervvMicIs culled St. Aiinc, wli.Mtt 
tin; town of I'-redcrictoii lias l)ccii siiicu built. It was at tliat tiiiio 
a wilderness. Tlicro tliey liojied to remain unknown. Tliey 
gathered oti tiiat spot some of the romnant of tiieir race, and com- 
menced cnitivatiuf,' the soil, acknowledffing no allegiance to any 
power on earth, and most certaiidy disinclined to court the attention 
of British barbarity. In 17d4 they were discovered and their laiuls 
were granted to a disbanded regiment of Refugees, connnanded by 
one Colonel Lee, (of Massachusetts it is said.) The fn-st notice 
which those simple people had of tiic fact was tiie aj)pearance of 
British surveyors in their peaceful region ; they remonstrated, and 
as a matter of special favor they were told that each one tJiight re- 
tain his dwelling house and two hundred feet of land around it. 
They soon learned the description of tlie boundary assignee! to the 
United States in that quarter by the Treaty of 1783, and their un- 
soi)histicatcd minds jjointed out to them, at once, the highlands 
north of the St. John, as the highlands named iti the treaty. If 
followed of course in their jirocess of reasoning that the line run- 
ning due north from the St. Croix, must necessarily cross the river 
St. John, and they retreated to a point more than thirty miles west 
from the spot where the eastern boundary of tho State, as estab- 
lished in 1798, intersects that river, and in that place, near tho 
mouth of the JMadawasca, they seated themselves with the firm 
belief that the boundary of the United States interposed a barrier 
behind which they would ever be secure from the Tyranny of a. 
power whicii had for so many years oppressed their ancestors and 
themselves. 

Mr. Deane has explained in his commimications the manner in 
which they were induced, in 1790 and 1794, to receive grant.s from 
the Provincial authorities of New Brunswick of the farms which 
tl'.ey occupied. 

In regard to the ecclesiastical jurisdiction exercised by the Catho- 
lic Bishop of Boston in the Madawasca settlement, I learn that the 
present Bishop, when he took charge of his diocese in 182"), receivcul 
from the present Bishop of Quebec an offer to interchange faculties 
on the line dividing the limits of their Seas, and it was done." 

Note. See the depositions of several of the ftlailawasca settlers, taken Nm'r. 
1828, printed in the Appendix to tlie American Statements, page 339 to 31ii. The 
disposilion to soothe these settlers and their renug-naiicy to New Brunswick is very 
clearly, though incidentally, alluded to in the letter of" Lord Dorchester of <Jth July 
1787, to .John Hollantl, anil his reply, dated '2()th of the same month, printed in the 
same Appendix, pages 442, 143. liis Lordsiiip says, "you will neglect no opportu- 
nity of assuring all ])ersons, * * * '^ particularly the Accadians in that vicinity. of 
the good dispositions of Government in their favor as expressed m the enclosed'Min- 
utcs of Council, which you will communicate to them leaving copies thereof with 
some of the people for their satisfaction."— The minutes of Council here referred lo, 
state "his Lortlsiiip proposed and the Council concurred in authorizing !Mr. Holland 
lo give assurances to all persons lo settle there, and especially the Accadians in thai 
vicinity, of the favorable intentions of this Govt^rnnient to issue grants in their favor 
tor three hundred af res to the head of every family,'' &c. 



34 



INo. 3. 

flit met from (he ArgunuiUs of thv British Agent under the 
Tnotij of 1794. 

If It can l>u ''liDWii iliai the river Scouiliac, so cullid by tlie 
Iiiiliaiis, in the river .St. (.-rnix, and tliat a line al(jn^ the middle of it 
to it:j siHiiri', together with a line itut north from its source, formed a 
part oj the wcslirn boundaries of the province of .Vova Scotia, and that 
the highlantl.s formed tlie northern boundarij line of tliis province al 
the lime the treiiti/ of peace was made, so as to form the northwest ant^le 
of .Yova Scotia bij these ivestern and northern boundaries, the intention 
0/ the treaty of peace is at once a^sceitained in the great point in con- 
troversy. ******* 

All the ['rench possessions upon tlie continent of Nortli America 
lieing hy that treaty (17G3) ceded to Great IJrilain, the province of 
Qiieiiec \\ as created and established by the lloyal Proclamation of 
the 7th October in that year, and bounded on the south by the high- 
lands which divide the rivers that empty themselves into the river 
St. Lawrence from those which fall into the sea or Atlantic ocean ; 
thereby altering the north boundary ortho province ol'IVova Scotia 
fiom tiie southern shore of the river St. Lawrence to those high- 
lands. * * * * * * * 

It is sutliciriit here to observe, that at the time the treaty of peace 
« us made in \78'3, the |)rovinces ot'Quebec and Nova Scotia belonged 
to uiul were in possession of the crown of Great Britain, and that 
his Britannic .Maji.'sty at that time had an und(Uil)ted right to cede 
to the I'niled States of .America such jjart (d these territories as he 
might think lit, and that in n\aUing the cession of the territory com- 
prised wiihin the boundaries of the United States, as described in 
the second ailicle of the treaty of peace, his Majesty must be sup- 
p(jscd to have iiseil ihe terms describing thc^se boimdaries in the 
E<;nse in \s liich they had l;een nniforndy undei stood in the J3ritish 
nation and recognized in [lublic docnmt.'iits and acts of govermnent. 
ill this sense and in no other coidd tiiey have been then imderstood, 
or ran they now be claim(?d or insisted ujton by the United States. 
Ill this sense and in no other is his Majesty bomiil to give tiie i»os- 
hession. * x- * * * * * 

As then at the treaty of pence in 1783 the norihern limit of the 
province of Nova Scotia waa a tine along the highlands tvhich divide 
the rivers that empti/ themselves into the rivtr St. Lawrence from those 
which Jail into the sea, it unrpiestionably follows, that the northwest 
angle of .\'ova Scolia at the time of the Ireahj of peace in 1783 was 
that angle u^hieh was formed bi/ a line drawn due north from the source 
of Ihe liver St. Croi.r to those highlands. 

jt ****** * 

Can it be believed or lor a moment imagined that in the course 
of human events so exact u coincidence could have liapponeil be- 
tvMMMi the ai-tiial, r«!al bomiflaries ol' the proxince of Nova Scotia 
«iiid the boimdaries of il described in this treaty, (I78M) if the latter 
li.id not been tlictnted and rrguhiled by the former. 



35 

"A line due nortfi from a source of the western or main branch 
of the Scoudiac or St. Croix will fully secure this effect to the United 
States in every instance and also to Great Britain in all instances 
except the river St. John wherein it becomes impossilde by reason 
that the source of this river is to the westward not only of tlie 
western boundary line of Nova Scotia, but of the sources of tho 
Penobscot and even of the Kennebec, so tiiat this north line must 
of necessity cross the river St. John. But if a north line is traced 
from the source of the Cheputnatecook, it will not only cross the 
river St. John within about fifty miles from Fredericton, the me- 
tropolis of New Brunswick, but will cut off the sources of the rivers 
whicdi fall into the Bay of Chaleurs, if not of many others probably 
the Mirramichi among them, which fall into the gulpli of St. Law- 
rence." 



Letter q/" Robert Liston, Esquire, Minister Plenipotentiary 

of Great Britain, at Washington, to the British Agent 

under the Treaty of 1794. 

Providence, 23d Oct. 1798. 
Private. 

Sir — I have considered with attention your letter of this day, 
and it appears to me evident that the adoption of the river Cheputna- 
tecook as a part of the Boundary between his Majesty's American 
dominions and those of the United States, in preference to a line 
drawn from the easternmost point of the Scodiac Lakes would 
be attended with considerable advantage. It luould give an addition 
of territory to the Province of JVeiv Brunswick together with a greater 
extent of navigation on St.John^a river: and above all a larger stretch 
of natural frontier, calculated to prevent future difficulties and dis- 
cussions between the two countries. If therefore by assenting to 
the proposal of tlie American Ageut you can bring about the unan- 
imous concurrence of the Commissioners in this measure, I am of 
opinion that you tvill promote His Majesty^s real interests : and I will 
take the earliest opportunity with a view to your justification, of 
ex|)ressing these my sentiments on the subject to His Majesty's 
Secretary of State. 

I have the honor to be with great truth and regard, Sir, your 
most obedient humble servant, ROB. LISTON. 

Ward Chipman, Esq. 

[Note. The river Cheputnatecook was selected and established, as recommend- 
ed in the above letter, to be the 7-iver St. Cioix. For further extracts from the Ar- 
f anient of the British Agent, see Appendix to American Statements, pages 270 to 
7t.] 



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